[2011] KEHC 4298 (KLR)

[2011] KEHC 4298 (KLR)

The court held that it had jurisdiction to determine the petition under Article 165 of the Constitution. Section 23 of the Sixth Schedule is a valid part of the Constitution, enacted as an expression of the sovereign will of the people of Kenya, and cannot be declared unconstitutional by the court. The Vetting of Judges and Magistrates Act, 2011, enacted pursuant to section 23, does not violate the principle of separation of powers or judicial independence, as it is a constitutionally mandated transitional mechanism. The provisions of the VJMA do not infringe the Bill of Rights: the vetting process is not discriminatory, does not amount to torture or degrading treatment, and provides...

Citation
[2011] KEHC 4298 (KLR)
Parties
Applicant: Dennis Mogambi Mong'are; Respondent: Attorney General; Respondent: Minister for Justice and Constitutional Affairs; Respondent: Judges and Magistrates Vetting Board; Respondent: Judicial Service Commission
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
18 November 2011
Case Number
Petition 146 of 2011
Procedural Posture
Constitutional Petition / Judgment
Outcome
petition dismissed
Legal Topics
Judicial Independence, Separation of Powers, Bill of Rights Enforcement, Transitional Provisions, Vetting of Judicial Officers, Fair Hearing Rights
Source Language
English
Constitutional Law Administrative Law Judicial Independence Separation of Powers Bill of Rights Enforcement Transitional Provisions Vetting of Judicial Officers Fair Hearing Rights

Case Brief

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Parties

Dennis Mogambi Mong'are

Applicant

Attorney General

Respondent

Minister for Justice and Constitutional Affairs

Respondent

Judges and Magistrates Vetting Board

Respondent

Judicial Service Commission

Respondent

Procedural Posture

Constitutional Petition / Judgment

Legal Issues

  1. 1 Whether the High Court has jurisdiction to entertain the petition in light of section 23 of the Sixth Schedule.
  2. 2 Whether section 23 of the Sixth Schedule is in conflict with the substantive provisions of the Constitution and should be declared null and void.
  3. 3 Whether the Vetting of Judges and Magistrates Act, 2011 violates the principle of separation of powers and independence of the judiciary.

Ratio Decidendi

The court held that it had jurisdiction to determine the petition under Article 165 of the Constitution. Section 23 of the Sixth Schedule is a valid part of the Constitution, enacted as an expression of the sovereign will of the people of Kenya, and cannot be declared unconstitutional by the court. The Vetting of Judges and Magistrates Act, 2011, enacted pursuant to section 23, does not violate the principle of separation of powers or judicial independence, as it is a constitutionally mandated transitional mechanism. The provisions of the VJMA do not infringe the Bill of Rights: the vetting process is not discriminatory, does not amount to torture or degrading treatment, and provides...

Court Disposition

petition dismissed

Orders

  • The petition is dismissed for lack of merit.
  • No order as to costs.